Strange aka Petryszick v Casey Farms Limited
[2023] NZHC 3596
•8 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-419-0179
[2023] NZHC 3596
BETWEEN PETER MORRISON STRANGE aka PETER MORRISON PETRYSZICK
Plaintiff
AND
CASEY FARMS LIMITED
First Defendant
BROSNA FARMS LIMITED
Second DefendantJOTAC LIMITED
Third Defendant continued over…
Hearing: On the papers Counsel:
Plaintiff in person
D Quinn for the First and Second, Defendants G Bradford for the Third Defendant
B R Webster for the Fourth Defendant
Date of Judgment
8 December 2023
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
[application for leave to appeal and for a stay]
This judgment was delivered by me on 8 December 2023 at 4 pm.
Pursuant to Rule 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
Solicitors/Counsel: Purnell Law, Thames
Morgan Coakle, Auckland Coombe & Associates, Paeroa
STRANGE v CASEY FARMS LIMITED [2023] NZHC 3596 [8 December 2023]
W G BROADBENT & CO TRUSTEES LIMITED
Fourth Defendant
RYAN LAW
Fifth Defendant
PB AND BL CASEY PARTNERSHIP
Sixth Defendant
Introduction
The substantive judgment
[1] On 31 October 2023, I granted applications by the second, third, fourth and sixth defendants for an order striking out, in its entirety, a claim brought by the plaintiff, Peter Strange (the substantive judgment).1 I found that the defendants were entitled to costs, but did not fix costs pending the filing of memoranda.2
[2]The background to Mr Strange’s claim is set out in the substantive judgment.
[3] The proceeding was struck out on the basis that it did not disclose a reasonably arguable cause of action against any of the defendants. Mr Strange was seeking to impugn a transaction between his father, Hugh Strange, and Phillip Casey and Beverley Casey, in partnership as the PP and BL Casey Partnership. Mr Strange was not a party to that transaction, and had no standing to bring the claim.
[4] The proceeding included a cause of action by Mr Strange against a firm of solicitors, W G Broadbent & Co, who allegedly had some involvement in representing one or both parties to the transaction. The law firm had never acted for Mr Strange and did not provide advice to Mr Strange in respect of the transaction, which is not surprising given that Mr Strange was not a party to the transaction. There was no basis for a cause of action against the law firm.
[5] The proceeding also included a cause of action by Mr Strange against JOTAC Limited (JOTAC), a company that owned premises at one point leased to Mr Strange. It was not possible to discern a cause of action by Mr Strange against JOTAC, and any claim for breach of lease was time-barred.
1 Strange v Casey Farms Ltd [2023] NZHC 3054.
2 At [35]–[36].
Mr Strange’s subsequent applications and the costs judgment
[6] On 17 November 2023, Mr Strange applied for leave to appeal the substantive judgment, and for a stay of the substantive judgment pending determination of the appeal.
[7] Mr Strange’s application appears to rest on two of my interlocutory decisions, made before I determined the defendants’ application to strike out the proceeding:
(a)my decision declining to recuse myself, made in my minute dated 25 October 2023; and
(b)my refusal to order the defendants to provide particular discovery of the agreement for sale and purchase that was the basis of the challenged transaction (the interlocutory decisions).
[8] On 22 November 2023, after receipt of submissions on costs, I gave judgment fixing costs in favour of the defendants (the costs judgment).3
[9] Mr Strange is self-represented. It is apparent that he is not aware of the different procedure that he must follow to appeal the interlocutory decisions, as compared to the procedure that he must follow to appeal the substantive judgment.
Legal principles
Leave to appeal
[10] Pursuant to s 56(4) of the Senior Courts Act 2016, Mr Strange does not require the leave of this Court to pursue an appeal of the substantive judgment.
[11] Pursuant to s 56(3) of the Senior Courts Act, Mr Strange is required to obtain the leave of this Court to pursue an appeal against any interlocutory decision.
3 Strange v Casey Farms Ltd [2023] NZHC 3319.
[12] The rationale behind the requirement for leave is simple: it serves as a filtering mechanism, ensuring that neither unmeritorious appeals of interlocutory orders, nor appeals against insignificant interlocutory orders, are allowed to proceed so as to delay unnecessarily the proceedings in which the orders are made.4
[13] The approach to an application for leave, and the principles governing its grant or refusal, are well-established:
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.5
Stay pending appeal
[14] The bringing of an appeal does not operate to stay the effect of any judgment being appealed. The general rule is that a successful party is entitled to enjoy the fruits of a judgment.
[15] In deciding whether to grant a stay, the Court must balance the successful litigant’s rights to the fruits of the judgment and any need to preserve the unsuccessful litigant’s position should the appeal succeed.6 The relevant factors to consider are:
(a)whether the appeal may be rendered nugatory by the lack of a stay;
4 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
5 Tomar v Tomar [2021] NZCA 419 at [6].
6 Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.
(b)the bona fides of the applicant as to the prosecution of the appeal;
(c)whether the successful party will be injuriously affected by the stay;
(d)the effect on third parties;
(e)the novelty and importance of questions involved;
(f)the public interest in the proceeding;
(g)the overall balance of convenience; and
(h)the apparent strength of the appeal.7
Discussion
Leave to appeal
[16] As noted above, Mr Strange does not require leave from this Court to appeal the substantive judgment. Regarding the interlocutory decisions, my decision declining to recuse myself and my refusal to order the defendants to provide particular discovery of the agreement for sale and purchase are intertwined.
[17] Mr Strange argued that I should recuse myself because I refused to order the particular discovery that he requested. I determined that a fair minded, fully informed observer would have no apprehension that I might not bring an impartial mind to the resolution of the application for strike out, based on my refusal to order discovery.
[18] Mr Strange’s application for particular discovery of the agreement for sale and purchase was made verbally and informally, in case management conferences and in various documents that he filed in advance of case management conferences.
[19] I did not consider that it was an appropriate case to make an order for discovery before the defendants’ application for strike out was determined. I did not make a
7 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].
formal decision declining to order particular discovery of the agreement for sale and purchase on the basis that Mr Strange had not filed an application for such an order.
[20] This is not an appropriate case for a grant of leave to Mr Strange to appeal the interlocutory decisions. These issues can be raised by Mr Strange as grounds of appeal of the substantive judgment.
Stay of enforcement
[21] It appears that Mr Strange’s purpose in filing his application for a stay was to prevent a costs order being made against him until disposition of his appeal.
[22] I considered that it was appropriate to determine and fix costs before dealing with Mr Strange’s application for a stay, and I delivered the costs judgment accordingly.
[23] The issue to be determined now is whether enforcement of the costs judgment should be stayed pending determination of Mr Strange’s appeal, assuming that he files one in the Court of Appeal.
[24] At a telephone conference on 1 December 2023, counsel for the defendants agreed that I should treat Mr Strange’s application dated 17 November 2023 as an application for a stay of enforcement of the costs judgment. During the conference, Mr Strange confirmed that he did not wish to file any further submissions or evidence in support of his application for a stay.
[25] The second, third and sixth defendants abide the decision of the Court. The fourth defendant has filed a memorandum opposing a stay, but did not wish to be heard further.
[26] This is not an appropriate case for a stay of the costs judgment. In my view the appeal, if filed, has absolutely no merit. The defendants should be free to recover their costs.
Result
[27] The plaintiff’s application for leave to appeal the interlocutory decisions is declined.
[28]The plaintiff’s application for a stay of the costs judgment is declined.
[29]There is no further order as to costs.
Associate Judge Brittain
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